Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg BNA Daily Labor Report, in “Virus-Relief Bill’s Paid Leave Boost Poses Enforcement Test,” by Ben Penn. (Read the full version – subscription required.)
Following is an excerpt:
Emergency-relief legislation headed to President Donald Trump’s desk would require major operational changes at a relatively small Labor Department agency that would be tasked with ensuring workers’ right to coronavirus-related leave.
The department’s Wage and Hour Division would need to overhaul its investigatory procedures to enforce a new mandate requiring companies with fewer than 500 employees to provide workers with up to 10 weeks of partially paid Family and Medical Leave Act leave, along with up to 10 days of emergency paid sick leave.
The Senate on Wednesday approved an updated House-passed bill (H.R. 6201) that narrows the circumstances in which workers would be eligible for emergency paid leave. The changes adjusted the FMLA provisions so that leave would be available only to individuals who can’t work or telework because of child-care needs stemming from closures of schools or day-care providers.
The legislation, which Trump is expected to sign, poses a significant operational test for the Wage and Hour Division. The agency is in the early stages of hiring to offset a more than 20 percent reduction in its investigatory ranks over the last three years. …
The Wage and Hour Division, which enforces the Family and Medical Leave Act, would need to immediately develop an enforcement plan and begin writing regulations that define basic terms, such as which symptoms of Covid-19—the disease caused by the new coronavirus—would qualify a worker for leave absent a diagnosis confirmed by testing, Hancock said. WHD investigators would then need to be trained to enforce the new law.
The pressure for quick action comes as the WHD lost decades of institutional knowledge and leadership in February, when a pair of senior career officials departed in the same week.
Paul DeCamp, a former WHD administrator under President George W. Bush, said the division’s investigators should be able to adapt quickly.
“The Wage and Hour Division will need to do some training for its investigators. That training might not have to be all that extensive, depending on what the actual changes in the law are—it could be as simple as handing out some fact sheets or there may be in-person trainings,” said DeCamp, who now represents businesses as an attorney at Epstein Becker Green in Washington, D.C. “That probably won’t take very long. The investigators are familiar with FMLA and they’re familiar with how to conduct an investigation.”
The division is coming off a banner enforcement year in which its investigators, despite attrition in the ranks, collected $322 million in back-pay for workers during fiscal year 2019, an all-time high for the agency.
When Will Enforcement Start?
The more immediate priority for the agency after a relief package is enacted would be to publicize new provisions of the law, DeCamp said.
“The most important thing from a pay and a leave perspective that the Wage and Hour Division can be doing right now is to get information out to the public, apprising everyone of pertinent changes to the law if and when those changes happen,” he said.
Actual investigations into whether employers comply with the changes will be difficult to ramp up until “the worst of it has come and gone and things are starting to return to normalcy,” DeCamp said. “Then we will expect to see the Wage and Hour Division doing more of its work in an after-the-fact, cleanup type role.”